By order to show cause dated February 14, 2008, the defendants, Alan Bomzer (hereinafter Bomzer) and George Bomzer & Son Inc. (hereinafter GBS) move, pursuant to CPLR §5015, to vacate and set aside a default judgment in favor of the plaintiff and against the defendants. Plaintiffs oppose the order to show cause.

Defendants' order to show cause consists of an affidavit by Bomzer and seven exhibits. The first exhibit is plaintiff's amended summons and verified complaint. The second exhibit is the judgment on default. The third exhibit is a notice to the judgment debtor dated October 2, 2007, and the marshal's notice of levy. The fourth exhibit is a copy of the original order to show cause dated November 14, 2007. The fifth exhibit is a copy of the court's order dated January 25, 2008, denying the defendants' prior order to show seeking the same relief. The sixth exhibit is a letter from the marshal dated January 29, 2008. The seventh exhibit contains six documents, namely, the affidavit of service of the amended summons and complaint; a letter dated November 12, 2007 from defendant GBS, a certificate of title to a 1997 Ford van, a letter from Mr.Harry Dennis of Best Mechanical dated November 12, 2007 , and two letters from Peter [*2]Vasquez dated November 9 and 12, 2007 respectively.

Plaintiff's opposition papers consists of an affirmation of counsel, an affidavit of the secretary and managing officer of the plaintiff and four exhibits. Exhibit A consist of copies of fifteen checks that were written by Bomzer and payable to GBS. Exhibit B consists of a five documents, namely, a one page document showing three checks that were written by Bomzer and payable to plaintiff; copies of four letters from the parties' lawyers regarding the defendants' alleged debt to the plaintiff. Exhibit C is a copy of the default judgment. Exhibit D are the affidavits of service of the complaint and amended complaint.

The annexed affidavit of plaintiff's process server alleges that Bonzer was served the amended summons and verified complaint at his home address by delivering same to a person of suitable age and discretion on August 9, 2007, followed up by a mailing to Bomzer at the same address on August 10, 2007. The other annexed affidavit of plaintiff's process service avers that on July 16, 2007, GBS was served by service upon Secretary of State of the State of New York. It is noted that plaintiff's counsel also annexed an affirmation of notice of suit. That notice shows service upon Bonzer pursuant to CPLR §3215, on August 23, 2007, by mailing an additional copy of the amended summons and notice to Bomzer's residence.

Bomzer's affidavit alleges that he was not served with the initial or amended summons and complaint and that he first became aware of the default judgment upon receipt of the Marshall's notice execution. He alleges by a statement in the third person that Alan Bomzer and two other individuals resides at the address of service. He further alleges that the description articulated in the affidavit of service of the person who was handed the pleadings does not match him or the other two residents. At the same time, however, Bomzer state that even if he was served, he believed the matter was being settled between the parties. Bonzer offers no statement or allegation of fact, either individually or as an officer of GBS, with respect to service upon defendant GBS.

"The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" (Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d 343, 756 NYS2d 92; see Wern v. D'Alessandro, 219 AD2d 646, 647, 631 NYS2d 425; Frankel v. Schilling, 149 AD2d 657, 659, 540 NYS2d 469). "A process server's sworn affidavit of service ordinarily constitutes prima facie evidence of proper service pursuant to CPLR 308(2)" ( Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d at 343-344, 756 NYS2d 92). Here, the process server's affidavit pertaining to service upon Bomzer establishes prima facie , that Bonzer was properly served pursuant to CPLR 308(2).

A defendant's bare denial of receipt of service is insufficient to rebut prima facie proof of proper service (425 East 26th Street Owners Corp., v. Beaton, 2008 WL 1748338 [2nd Dept 2008] citing General Motors Acceptance Corp. v. Grade A Auto Body, Inc., 21 AD3d 447

[2nd Dept 2005]).

The annexed affidavit of plaintiff's process service pertaining to service upon GBS constitutes prima facie proof of proper service upon the Corporation pursuant to Business Corporation Law § 306 (General Motors Acceptance Corp. v. Grade A Auto Body, Inc., supra , 21 AD3d 447; 96 Pierrepont, LLC v. Mauro, 304 AD2d 631; Simmons First Nat'l Bank v. [*3]Mandracchia, 248 AD2d 375. Conclusory denials of service are insufficient to raise an issue of fact (General Motors Acceptance Corp. v. Grade A Auto Body, Inc., supra ). Based on the foregoing, the court concludes that it had jurisdiction over Bomzer and upon GBS when it rendered the default judgment.

A party may move to vacate a default judgment against it under CPLR §317 or

CPLR §5015. When a party cites only one statutory provision, the court may consider whether the application of either statute would warrant the relief requested (see Peacok v Kalikow, 239 AD2d 188 [1st Dept. 1997]).

CPLR §317 states in pertinent part:

A person served with a summons other than by personal delivery to him or to his agent

... may be allowed to defend the action within one year after he obtains knowledge of

entry of the judgment ... upon finding of the court that he did not personally receive

notice of the summons in time to defend and has a meritorious defense.

Unlike a vacatur motion under CPLR §5015, it is unnecessary for a defendant seeking

relief under CPLR §317 to demonstrate a reasonable excuse for his default (NY Presbyterian Hosp. v Allstate Ins. Co., 29 AD3d 968 [2nd Dept. 2006].) However, defendant admits in his sworn affidavit that he knew about the pending complaint and that he expected to settle the matter with the plaintiff. Furthermore, the court finds that personal service was properly made upon Bomzer. As such, defendant had actual notice of the action in time to defend it. His failure to answer was thus conscious because he had actual notice of the pending lawsuit against him (see Tremont Federal Sav. & Loan Assoc v Ndanusa, 144 AD2d 660 [2nd Dept 1988]; Long Island Minimally Invasive Surgery, P.C. v Lester, 12 Misc 3d 1183 (A) [Nassau County 2006]). Therefore, defendant's motion to vacate the default judgment, if premised upon CPLR §317, fails in light of his knowledge and receipt of proper service.

CPLR §5015 (a)(4), states, in pertinent part:

That the court which rendered a judgment... may relieve a party from it upon such terms

as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of ... lack of jurisdiction to render the judgment.

A lack of personal jurisdiction exists where the defendant was not properly served with process pursuant to CPLR §308. Since, in the absence of proper service of a summons, a default

judgment is a nullity which must be vacated for lack of personal jurisdiction (Chase Manhattan Bank, N.A. v Carlson, 113 AD2d 734 [2nd Dept 1985]). In such a situation, following vacatur of the default, outright dismissal of plaintiff's complaint is also warranted (Steele v Hempstead Pub. Taxi, 305 AD2d 401 [2nd Dept. 2003]). Here the court has determined that proper service was established.

CPLR §5015 (a)(1) also permits the court to vacate a default judgment where there has been an "excusable default" by defendant. A defendant seeking to vacate a default judgment on the ground of excusable default bears the burden of demonstrating both a justifiable excuse for the default and a meritorious defense (see Zino v Joab Taxi, Inc., 20 AD3d 521 [2nd Dept. 2005]).

Settlement negotiations generally do not constitute an excuse for default that warrants vacatur (People by Abrams v Scudds, 195 AD2d 778 [3rd Dept. 1993]). Defendant's admission that he knew about the complaint but expected to reach a settlement with plaintiff is not a viable excuse [*4]for the default.

As defendant has not met his burden of establishing excusable default, the issue of defendant's potential meritorious defense need not be reached.

Defendants' motion to vacate the default judgment is denied.

The foregoing constitutes the decision and order of the court.

___________________________

J.S.C.